Citation Nr: 1823611 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-31 270A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent for right eye aphakia status post cataract surgery with angle recession. 2. Entitlement to special monthly compensation (SMC) for loss of use in one eye. REPRESENTATION Veteran represented by: Swords to Plowshares WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a hearing held before the undersigned Veterans Law Judge in October 2017 via videoconference. A transcript of the hearing has been associated with the Veteran's electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The Veteran's right eye aphakia status post cataract surgery with angle recession has not been manifested by an anatomical loss; service connection is not in effect for any disabilities involving the Veteran's left eye and the Veteran is not blind in that eye. 2. The does not have loss of use of his right eye. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right eye aphakia status post cataract surgery with angle recession have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.75-4.79, Diagnostic Code 6029 (2017). 2. The criteria of entitlement to SMC under 38 U.S.C. § 1114(k) for loss of use of the Veteran's right eye are not met. 38 U.S.C. §§ 1114(k), 5107 (2012); 38 C.F.R. § 3.350(a)(4) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The duty to assist the Veteran has also been satisfied in this case. The file contains the Veteran's service personnel and treatment records, identified or submitted records of private and VA medical care, the reports of the VA examinations in January 1984, November 1996, August 1998, May 2007, December 2007, October 2010, and December 2011, and vocational rehabilitation records. The Veteran has not identified any additional available, outstanding records. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As noted above, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. Here, the undersigned clarified the issues on appeal and made inquiry as to the existence of outstanding evidence. The actions of the VLJ comply with 38 C.F.R. § 3.103 (2017). In addition, neither the Veteran nor his representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of the appeal, VA revised the criteria for rating eye disabilities; however, the changes only apply to claims for benefits received by VA on or after December 10, 2008. The Veteran's claim for an increased evaluation for right eye aphakia status post cataract surgery with angle recession was received subsequent to December 10, 2008. The December 10, 2008 amendments included a rearrangement of some substantive criteria for rating eye disabilities, which ultimately eliminated 38 C.F.R. § 4.84a (2008). The current version of the schedule for rating the eye is located in 38 C.F.R. § 4.79 (2017). The Veteran's right eye aphakia status post cataract surgery with angle recession is rated as 30 percent disabling under Diagnostic Codes 6027-6029. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 6027, preoperative cataracts and postoperative cataracts with a replacement lens (pseudophakia) are evaluated based on visual impairment; postoperative cataracts without a replacement lens are evaluated based on aphakia. 38 C.F.R. § 4.79. In this case, the Veteran's cataracts are post-operative and his disability will be evaluated based on aphakia. Aphakia is rated under Diagnostic Code 6029, and is to be evaluated based on visual impairment. The resulting level of visual impairment is then elevated one step. The minimum rating for aphakia, either unilateral or bilateral, is 30 percent. 38 C.F.R. § 4.79, Diagnostic Code 6029 (2017). The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a) (2017). Impairment of central visual acuity and impairment of visual fields are evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6061 through 6081 (2017). Impairment of central visual acuity is evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6079 (2017). Measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76, 4.79, Diagnostic Code 6080 (2017). The maximum disability rating assignable for defective vision when only one eye is service-connected is 30 percent. A disability rating higher than 30 percent can only be assigned where there is anatomical loss of the service-connected eye. See 38 C.F.R. §§ 4.75(d). The Board takes notice that enucleation is the same as anatomical loss of an eye. See Dorland's Illustrated Medical Dictionary, 31st Edition, p. 635 ("enucleation" defined as "the removal of an organ, of a tumor, or of another body in such a way that it comes out clean and whole, like a nut from its shell. Used in connection with the eye, it denotes removal of the eyeball after the eye muscles and optic nerve have been severed."). As the Veteran is already in receipt of a 30 percent disability rating for his service-connected right eye aphakia disability, a higher disability rating can be granted for the Veteran only if there has been an anatomical loss involving his service-connected eye. The Veteran contends he is entitled to a rating in excess of 30 percent for his right eye aphakia status post cataract surgery with angle recession. In October 2010, the Veteran was afforded a VA examination. The Veteran endorsed headaches without correction in the right eye. He stated that his right eye muscle was weak and that he had "no control" over his eye. In a subsequent VA examination report dated December 2011, no anatomical loss of eyelids, brows, or lashes were noted. Aphakia with capsular fibrosis was observed but otherwise, internal and external eye examinations performed during the December 2011 VA examination were normal. The VA examiner further reported that the left eye was within normal limits. Thus, there is no competent evidence of record that documents enucleation or anatomical loss of the Veteran's right eye, nor is there mention of any objectively observed cosmetic defects. In the absence of evidence demonstrating anatomical loss of the Veteran's right eye or the presence of serious cosmetic defects in that eye that are attributable to the Veteran's aphakia, the criteria for a disability rating higher than 30 percent for the Veteran's right eye aphakia disability are not met. Therefore, the Veteran's symptomatology most closely approximates the criteria for a 30 percent rating for right eye aphakia status post cataract surgery with angle recession. III. Special Monthly Compensation The Veteran contends he is entitled to SMC under 38 U.S.C. § 1114(k) as he has loss of use of his right eye. SMC is available when, as the result of service-connected disability, "a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). The rate of special monthly compensation "varies according to the nature of the veteran's service-connected disabilities." Id. The basic levels of special monthly compensation are set out in section 1114(k). Under 38 C.F.R. § 3.350(a)(4), the loss of use or blindness of one eye having only light perception, will be held to exist when there is inability to recognize test letters at one foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than three feet is considered of negligible utility. In a statement dated April 2013, the Veteran reported that he is unable to read test letters at one foot and cannot count fingers at three feet. He referenced the VA examination that noted he was unable to count fingers at one foot, but that it did not include a test of whether he could read test letters at one foot. In a September 2014 VA Form 9 and at the October 2017 Board hearing, the Veteran's representative asserted that the Disability Benefits Questionnaire (DBQ) completed by the December 2011 VA examiner was incorrectly worded and did not accurately represent the level of functioning in the Veteran's right eye. As noted above, the Veteran was afforded VA examinations in October 2010 and December 2011. The Board notes that the October 2010 VA examination report contains a notation of "hm at 3 ft" in reference to the Veteran's uncorrected visual acuity. In the December 2011 DBQ, the VA examiner answered in the affirmative to the question of whether the Veteran has anatomical loss, light perception only, extremely poor vision, or blindness of either eye. The VA examiner indicated that the Veteran's vision was not limited to no more than light perception only. The VA examiner further reported that the Veteran was able to perceive objects, hand movements, or count fingers at three feet. Notably, in the remarks section of the DBQ, the VA examiner stated that the Veteran experiences constant diplopia with correction to the right eye. With a balanced prescription, the VA examiner reported that the Veteran is only able to function with the left eye and consequently has monovision. There are strict standards for providing special monthly compensation. The Board acknowledges that the Veteran's use of a corrective lens renders him with diplopia in the right eye. In May 2014, VA outpatient treatment records indicate that the Veteran was reportedly unable to wear aphakia or corrective lenses due to diplopia, and that it was unclear whether alternative lenses would benefit the Veteran. However, without its use, the Veteran's right eye vision is significantly reduced. VA outpatient treatment records dated April 2012 and March 2013 note the Veteran has partial blindness in his right eye status post cataract surgery. However, despite terminology used in the reports, the examiner clearly established that the appellant retained visual acuity in the service connected eye to a degree better than that contemplated by the SMC requirement. The representative's opinion that the VA examination was in error, is opinion that is supported by nothing objective. In regard to the legal argument, we again note that SMC is a special type of benefit. The record establishes that acuity remains that is better than that contemplated by law. The Board is bound by law and regulations and we have found no precedent decisions of the Court that would require a different result. In regard to the lay evidence, clearly, the Veteran is competent to report that his acuity is worse than reported. However, his lay opinion is less probative and less credible than the objective finding of a skilled professional. ORDER Entitlement to a rating in excess of 30 percent for right eye aphakia status post cataract surgery with angle recession is denied. Entitlement to SMC for loss of use of one eye is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs